U.S. v. Punch, 82-3549

• Decision Date: 29 June 1983
• Docket Number: No. 82-3549,82-3549
• Citation: 709 F.2d 889
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David PUNCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 889

709 F.2d 889

UNITED STATES of America, Plaintiff-Appellee, v. David PUNCH, Defendant-Appellant.

No. 82-3549.

United States Court of Appeals Fifth Circuit.

June 29, 1983.

Glass & Reed, Robert Glass, New Orleans, La. (Court-appointed), for defendant-appellant.

Robert T. Myers, Harry W. McSherry, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, GEE and WILLIAMS, Circuit Judges.

THORNBERRY, Circuit Judge:

INTRODUCTION:

David Punch appeals his conviction for importation of marijuana and cocaine following the district court's denial of his motion to withdraw his prior guilty plea. We conclude that the district court's failure to adequately inform Punch of the nature of the charges against him requires automatic reversal of his conviction.

FACTS AND DISPOSITION BELOW:

On December 15, 1980 government agents in Dulac, Louisiana seized the M/V ARTISTA and its cargo of 46,000 pounds of marijuana and 200 pounds of cocaine. ¹ Punch, the registered owner of the M/V ARTISTA, was subsequently charged in a four count indictment with possession with intent to distribute marijuana (Count I), possession with intent to distribute cocaine (Count II), importation of marijuana (Count III), and importation of cocaine (Count IV).

At a pre-trial conference, Punch's lawyer presented the court with a proposal to settle the case by having his client plead guilty to Counts III and IV of the indictment. Punch's lawyer stressed, however, that Punch persisted in maintaining that he was Although Punch believed that it was wrong for an innocent man to plead guilty, his lawyer later testified that he was able to convince him that, given the strength of the Government's case, it was in his best interest to enter a plea of guilty. ² The district judge accepted the plea under the rule of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), which permits the acceptance of a guilty plea even though the defendant persists in maintaining his innocence. The Government agreed to move for dismissal of the remaining counts at the time of sentencing.

innocent of all charges, claiming that his ship had been used for criminal purposes without his authorization.

Four days after he entered his plea, Punch was visited in jail by a probation officer assigned to prepare his pre-sentence report. In the course of the visit, Punch told the officer that he intended to withdraw his guilty plea. Since Punch's lawyer was on vacation at that time, Punch wrote a letter to the district judge informing him that he wished to withdraw the plea. Sentencing was postponed accordingly, and upon his return from vacation, Punch's lawyer filed a formal motion to withdraw the plea under Fed.R.Crim.P. 32(d). ³ After hearing oral argument, the court denied the motion and sentenced Punch to concurrent four year terms on Counts III and IV. The court relied on its discretionary power to deny the motion, reasoning that: (1) Punch was ably represented by counsel at the Rule 11 proceeding; (2) Punch was afforded every constitutional safeguard; and (3) all of the participants in the proceeding fully understood what was going on.

ANALYSIS:

Core Concerns

Punch argues on appeal that his conviction must be reversed because the district court failed to properly inform him of the elements of the offense to which he pleaded guilty. Rule 11(c)(1) of the Federal Rules of Criminal Procedure provides in pertinent part:

Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, ... the nature of the charge to which the plea is offered.

Fed.R.Crim.P. 11(c)(1). In United States v. Dayton, 604 F.2d 931 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980), this Court set out a number of clear and definite guidelines governing the conduct of guilty plea hearings, and the standards for reviewing these hearings on appeal. In Dayton, we stated that: (1) The requirement that the judge personally inform the defendant of the nature of the charge against him, and determine that he understands it, is a "core concern" of Fed.R.Crim.P. 11. (2) The entire failure by the court to address this core concern requires automatic reversal under McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). (3) In some cases, mere failure to adequately address this core concern may authorize further examination of the alleged omission in In Dayton, defendants pleaded guilty to charges of possessing a controlled substance with intent to distribute. The district court judge in that case read them the relevant counts of the indictment:

                light of the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).  (4) For simple charges, "a reading of the indictment, followed by an opportunity given the defendant to ask questions about it, will usually suffice" to discharge the judge of his obligation to personally inform the defendant of the nature of the charge against him.  (5) Charges of a more complex nature may require further explanation.   Dayton, 604 F.2d at 939
                

[COUNT 19]

That on or about August 15, 1976, in the Western District of Texas, [defendant] did unlawfully, knowingly and intentionally possess with intent to distribute approximately six hundred pounds of marihuana, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Section 841(a)(1).

....

[COUNT 28]

That on or about December 7, 1976, in the Western District of Texas, [defendant] did unlawfully, knowingly and intentionally possess with intent to distribute approximately one thousand pounds of marihuana, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Section 841(a)(1).

Id. at 941 (emphasis added). The judge then went on to ask defendant whether he understood these charges:

All right, Mr. Dayton, do you understand the nature of the charges that have been made against you in Counts 19 and 28?

MR. DAYTON: Yes, sir.

THE COURT: Mr. Dayton, any question about it?

MR. DAYTON: No, sir.

Id. In Dayton, we held that "the reading of this indictment, followed by an offer by the judge to answer any questions Dayton might have about it, was a satisfactory and sufficient explanation of the nature of this charge. His response that he understood and had no questions... was likewise a sufficient assurance in these circumstances." Id. at 943. See also United States v. Sanchez, 650 F.2d 745, 748 (5th Cir.1981) (the district attorney's reading of the indictment and the opportunity given by the district court for defendant to ask questions constitutes sufficient compliance with Rule 11(c)(1)).

The indictments handed down in the present case, like those read in open court in Dayton, simply and unambiguously set forth the nature and elements of the charges lodged against defendant. Counts III and IV are reproduced below.

COUNT III

On or about December 15, 1980, in the Eastern District of Louisiana, David Punch knowingly and intentionally did unlawfully import into the United States and into the customs territory of the United States from a place outside thereof, approximately 45,711 pounds of marijuana, a Schedule I controlled substance, said marijuana having been aboard the M/V ARTISTA; all in violation of Title 21, United States Code, Section 952(a) and Title 21, United States Code, Section 960(a)(1).

COUNT IV

On or about December 15, 1980, in the Eastern District of Louisiana, David Punch knowingly and intentionally did unlawfully import into the United States and into the customs territory of the United States from a place outside thereof, approximately 200 pounds of cocaine hydrochloride, a Schedule II narcotic controlled substance, said cocaine having been aboard the M/V ARTISTA; all in violation of Title 21, United States Code, Section 952(a) and Title 21, United States Code, Section 960(s)(1).

(Emphasis added). In the present case, however, neither the judge nor the district attorney ever read these charges to the defendant. We reproduce below relevant excerpts from the transcript of the colloquy between the court, the district attorney, Punch and his counsel at the Rule 11 proceeding:

THE COURT: I want you then to in addition to that, to inform Mr. Punch of the specific counts of the indictment. You don't have to read them in full, but I think it's important that he understands.

[DISTRICT ATTORNEY]: You are charged in a four count indictment. Counts one and two charge you with possessing approximately 45,000 pounds of marijuana, possessing approximately 200 pounds of cocaine hydrochloride, with intent to distribute. Counts three and four charge you with the importation of these substances into the United States, count three charges the importation of the marijuana and court [sic] four charging [you] with the importation of cocaine. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: I understand from the statement that your attorney has made to me and the pleadings that he has filed and his discussions with me in the presence of the U.S. attorney, that you do not specifically acknowledge your guilt with respect to the charges here, but that you do acknowledge the clear fact that the Government has the proof of your guilt, is that a fair statement of your feeling about this matter at this time?

THE DEFENDANT: In a way, but I had no knowledge of that, you know.

THE COURT: Is it my understanding correct [sic] that you feel that the Government's ability to prove their case is so strong that you feel that it is in your interest to enter this plea at this time?

THE DEFENDANT: Yes, sir.

THE COURT: Is that a fair statement?

THE DEFENDANT: Yes, sir.

THE COURT: Do you know what I'm talking about?

THE DEFENDANT: I know what you are...